jackson212

oh what the hell lets sue in 2011

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i basically thought id get someone to be devil's advocate and play the other side so i can contemplate filing suit. i have a complaint being worked on and this will be my first appearance in federal court, so far ive only litigated in state court (see discover card thread, its the one relevant to this thread)

discover card filed a lawsuit in 2001 against me. they hired an attorney to file the suit. the case was eventually dismissed for lack of standing.

during the discovery phase i called and on the phone they admitted that at the time they were hired by discover they did not have any documents. they sued based on what discover told them. they also said they didn't need any documents to sue me.

i read the opinion in miller v upt0n c0hen $lamowitz and the court agreed that a lawsuit without relevant documents is a violation of the fdcpa

"......attorney could not have rendered the necessary judgment on client's limited information, which included only debtor's account number, name, address, account balance and amount past due."

i have them on tape telling me they had no evidence, they still have no evidence, and that they filed suit knowing that they had no evidence.

what kind of hurdles im i looking at if i file this lawsuit in federal court for attorney's violation of 15 usc 1692e?

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Guest usctrojanalum

Be very careful, I have read over that case at least 30 times and UCS did not get in trouble because they did not have enough evidence. It was related, but they did not violate because they could not produce evidence. And if you remember from background from that case, UCS fought that tooth and nail and it took 10 years of litigation for Miller to win $1,000

Edited by usctrojanalum
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Be very careful, I have read over that case at least 30 times and UCS did not get in trouble because they did not have enough evidence. It was related, but they did not violate because they could not produce evidence. And if you remember from background from that case, UCS fought that tooth and nail and it took 10 years of litigation for Miller to win $1,000

that's the only problem with c&s. they fight EVERYTHING and then appeal. although miller may have won only 1,000, cohen has to pay close to 100,000 in legal fees.

i see your point. but not having evidence is the very heart of lack of attorney review. how can they review documents which they were required to but they didn't have those documents to review prior to filing the lawsuit?

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Guest usctrojanalum

i see your point. but not having evidence is the very heart of lack of attorney review. how can they review documents which they were required to but they didn't have those documents to review prior to filing the lawsuit?

The way attorneys have been getting around this nowadays is having the OC/JDB or whoever the plaintiff is provide an affidavit, or more like a "suit authorization" which is a signed statement from the plaintiff stating that I authorize <put name of attorneys office here> to file suit against <put defendants name here> for X amount of dollars. This covers the attorneys behind with regard to meaningful review and dosn't actually require them to have evidence of the debt

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The way attorneys have been getting around this nowadays is having the OC/JDB or whoever the plaintiff is provide an affidavit, or more like a "suit authorization" which is a signed statement from the plaintiff stating that I authorize <put name of attorneys office here> to file suit against <put defendants name here> for X amount of dollars. This covers the attorneys behind with regard to meaningful review and dosn't actually require them to have evidence of the debt

the miller case disagrees with you. i have a few others in the second circuit and in other circuits that say the same. the attorney needs to actually review the case themselves. that's the attorney's job. analyze the situation before filing the lawsuit. specifically the miller case, the court opined that the lawyer cant rely on someone else's analysis of the case. the attorney needs to review things like statute of limitations, date of delinquency, etc

what you just said is a straight up violation of the fdcpa i cant believe you actually said that.

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the attorney needs to actually review the case themselves. that's the attorney's job. analyze the situation before filing the lawsuit. specifically the miller case, the court opined that the lawyer cant rely on someone else's analysis of the case. the attorney needs to review things like statute of limitations, date of delinquency, etc

what you just said is a straight up violation of the fdcpa i cant believe you actually said that.

Nah, these are all things that can be provided by the plaintiff.

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Nah, these are all things that can be provided by the plaintiff.

you're confusing the issue.

can plaintiff provide the documents? probably. who knows.

but did attorney review the physical documents before filing suit? no. THIS is a violation. an independent review has to be conducted.

if you cant grasp this then we're on two totally different planets. i dont know what you dont understand but read the miller v upton/slamowitz case again if you actually read it. there are at least a dozen other cases with same opinion of the court.

thanks anyway

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You say the suit was back in 2001?

The SOL for an FDCPA action is one year.

you make an excellent point. probably one that will be used as a motion to dismiss.

my position is that although the suit was filed in 2001, they had the opportunity to withdraw their case and they didnt. subsequently the default judgment was vacated in 2010 and the complaint was reasserted, and even opposition papers to my motion. so in 2010 they had a second opportunity to look over teh complaint, documents, and make an independent assessment as to the validity of the claims in the complaint. the fact taht they opposed my motions would mean they had in fact reviewed some actual documents to substantiate their opposition.

secondly, im pretty sure the discovery rule applies here. meaning the SOL starts to run from date of discovery.

sol will be big argument i can tell.

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the attorney needs to actually review the case themselves.

Yes, the attorney is always expected to review the case, otherwise she could be opening herself up to a Rule 11(B) violation.

Problem is, there are differing opinions as to what constitutes an "inquiry reasonable under the circumstances."

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Yes, the attorney is always expected to review the case, otherwise she could be opening herself up to a Rule 11(B) violation.

Problem is, there are differing opinions as to what constitutes an "inquiry reasonable under the circumstances."

if no documents were reviewed, how can the inquiry be reasonable?

in their favor, what do you think their argument would be using an "inquiry reasonable under the circumstances" argument? i dont quite understand how this would help them can you expand a bit?

i have to look into that too

thanks

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Rule 11 violations typically come into play when baseless litigation is filed. You must make a demand by serving the violating party that they correct or withdraw the errant filing. If they don't after 21 days, you bring a motion to sanction.

Now let's talk about the sanction. First, you don't always get them. The court may just strike the errant pleading or motion. Second, in all but the most exceptional circumstances, the sanction is a small fine paid to the court and/or an amount equiavlent to the attorney's fees that the moving party paid to bring the Rule 11b motion paid to the moving party.

Let me add, there is 0 chance that you could claim a Rule violation now based on litigation from nine years ago.

Edited by jq26
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